Tutoring witness: Police cannot be allowed to tutor the prosecution witness and this kind of interference by the Police with the judicial process amounts to gross misuse of power by the Police machinery

Factual aspects

Convicted by trial court under sections 302 r/w 34 IPC which is confirmed by the High Court

1. The appellant in Criminal Appeal No. 407 of 2019 is the accused no.1, and the appellant in Criminal Appeal No.1609 of 2011 is the accused no.2. The Trial Court convicted both the appellants for an offence punishable under Section 302, read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’). By the impugned judgment, the High Court has confirmed the conviction and life sentence of the appellants.

Deceased was murder by A1 and A2 assaulted using billhook on his neck

2. We are referring to the prosecution case in brief. The name of the deceased is Balamurugan. He was staying with his parents – PW-l Mahalingam and PW-2 Veerammal. According to the prosecution case, the deceased had instructed accused no.1 to deliver idlis at his home. On 4th October 2007, at about 9 pm, the deceased came home and enquired with his mother PW-2 whether accused no.1 had delivered the idlis. On learning that accused no.1 had not delivered the idlis, he immediately went out and reached the house of accused no.1. It appears that there was a commotion due to his altercation with the accused no.1. According to the prosecution case, after hearing the commotion, PW-2 and PW-3 (the brother-in-law of the deceased) rushed to the spot. Accused no.2 was present at the spot. After that, accused no.1 entered his house, brought with him a billhook and assaulted the deceased with the billhook. The first blow fell on the right index finger of the deceased. Thereafter, the deceased ran away to the nearby garden of one Karunanidhi. The accused followed him. The accused no.2 held the deceased, and accused no.1 assaulted the deceased with the billhook on his neck. Both the accused fled after that. According to the prosecution case, PW-2, PW3, PW-4 (sister of PW-1), and PW-5 (son of PW-4) witnessed the incident.

Hon’ble Supreme court’s view

5. We have perused the evidence of the material prosecution witnesses. PW-1 is the father of the deceased, who had admittedly not seen the incident. PW-2 is the mother of the deceased. PW-2 in her examination-in-chief stated thus:

“About one year ago, my son came at 9.00 P.M. to house. My son asked me whether the 1st accused Siva had given idli to me. I told him Siva did not give idli. Immediately thereafter he said that he will go and ask Siva why he did not give idli and went from there. Thereafter, after sometime we heard a sound from the side of Siva’s house. I ran and saw there. By that time, the 1st accused Siva had cut my son with the billhook. That cut fell on the index finger. Immediately my son escaped and ran towards the tract of Karunanidhi. Immediately Siva and Manikandan chased my son and ran behind him and Manikandan had held my son. Siva had cut my son on his neck. My son inclined and fell down. I ran and screamed ‘Ayyo, Ayyo’. By hearing my noise, Annappattu, Ganesan, Arivazhagi, Velayudham came there running. The accused had thrown the billhook in their hands. After I saw my son, and lifted him, I came to know that my son was dead.”

Witness stated in cross-examination as if the day before she went to police station and the police taught us how to adduce evidence

6. In her examination-in-chief, she attempted to make out a case that the accused had spoken ill about her daughter-inlaw. Admittedly, she did not say so in her statement recorded by the police. Most importantly, in the cross-examination by the advocate for accused no.1, she stated, “Yesterday, I, my husband and other witnesses went to Haridwarmangalam Police station. There, the police authorities taught us how to adduce evidence.” It is pertinent to note that the evidence of PW-1 to PW-5 was recorded on 20th November 2008. Thus, it is apparent that on 19th November 2008, the first five interested witnesses, PW-1 to PW-5, who were closely related to the deceased, were called to the Police Station and were taught by the police how to depose against the accused. It is pertinent to note that the prosecution did not put questions to the witness by way of re-examination on this aspect. The investigation officer did not offer any explanation for this. Therefore, we must proceed on the footing that the first five witnesses were “taught” at the Police Station how to depose. This happened a day before the day their evidence was recorded before the Court.

8. Thus, the scenario which emerges is that precisely a day before the evidence of PW-1 to PW-5 was recorded before the Trial Court, they were called to the Police Station and were taught to depose in a particular manner. One can reasonably imagine the effect of “teaching” the witnesses inside a Police Station. This is a blatant act by the police to tutor the material prosecution witnesses. All of them were interested witnesses. Their evidence will have to be discarded as there is a distinct possibility that the said witnesses were tutored by the police on the earlier day. This kind of interference by the Police with the judicial process, to say the least, is shocking. This amounts to gross misuse of power by the Police machinery. The Police cannot be allowed to tutor the prosecution witness. This conduct becomes more serious as other eyewitnesses, though available, were withheld. We are surprised that both the Courts overlooked this critical aspect. It is pertinent to note that the defence of the accused, as can be seen from the line of cross-examination, was that they were not present at the place of the incident at the time of the incident. PW-2 admitted that accused no.1 was working in another village called Tirrupur. Although available, independent witnesses were not examined by the Prosecution. Therefore, adverse inference must be drawn against the prosecution. Hence, there is a serious doubt created about the genuineness of the prosecution case. The benefit of this substantial doubt must be given to the appellants. Before the appellants were enlarged on bail by this Court, they had undergone incarceration for more than 10 years.

10. The Director General of Police of the State of Tamil Nadu shall cause an enquiry to be made into the conduct of the police officials of tutoring PW-1 to PW-5 at the concerned Police Station. Needless to add, appropriate action shall be initiated against the erring officials in accordance with the law.

Party

Manikandan … Appellant versus State by the Inspector of Police … Respondent – Criminal Appeal No.1609 of 2011 WITH CRIMINAL APPEAL NO. 407 OF 2019 – 2024 INSC 272

https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=76772011&type=j&order_date=2024-04-05

Further study

• Though the judge assigned reasons retaining file of a case after demitting the office is an act of gross impropriety
• BIRD’S EYE VIEW ON THE TESTIMONY OF CHILD WITNESS IN CRIMINAL TRIAL
• POCSO – ACQUITTAL – LESS IQ FOR THE VICTIM.
• Murder: Common intention (section 34 IPC) & APPRECIATION OF EYE-WITNESS – EXPLAINED
• SECTION 173(2) Cr.P.C – THE OPINION IN THE FINAL REPORT WOULD NOT HAVE A BEARING ON THE CLAIM PETITION